On the petition of Annie L. White to have the will of Lula W. Nunley, deceased, admitted to prоbate, the district court on June 9, 1950, rendered a judgment ordering the will probated. The presumptive heirs of Lula W. Nunley were made parties defendant to this proceeding. On Fеbruary 8, 1951, on the petition of Annie L. White and Jasper White, the legatees named in the will, the district court rendered judgment recognizing them as the only legatees of the deceased and sending them into- possession of all the property left by her. On May 22,-1951, the presumptive heirs petitioned the district court and obtained an order of devolutive аppeal to the Court of Appeal, Second Circuit, from both of these judgments.. This оrder of appeal was timely taken and . perfected by the giving of an apрeal bond. The petition for appeal contained a prayer for citation on Annie L. White, who was. plaintiff both in the petition seeking to probate the will аnd in the petition seeking to have the legatees sent into possession, and also on Frank White. After the appeal was-lodged in the Court of Appeal, Secоnd Circuit, that court ordered the case transferred to this court for lack of jurisdictiоn. See-La.App.,
On November 13, 1951, before the return-day in this court and before the transcript was lodged here, the presumptive .heirs, ap
As Jasper White was not a party • plaintiff or defendant in the pеtition of Annie L. White seeking to have the will admitted to probate, it was not necessаry to cite him in an appeal from this judgment. He was, however, a party plaintiff with Annie L. Whitе in the proceedings in which judgment was rendered on February 8, 1951, putting them in possession, and thе validity of this judgment of necessity depends upon the validity of the judgment ordering the will probated. Jasper White as one of the two legatees, therefore, has an interest in maintaining the judgment of February 8, 1951, recognizing him as one of the legatees and sending him and Anniе L. White into possession of the property, is a necessary party to this appeal, and should have been served with citation of appeal. Marshall v. The Grand Gulf Railroad & Banking Company,
We cannot, therefore, consider the case on the merits until Jasper White is made a party to the appeal, but under the circumstances of this'case we have сoncluded that the lack of citation on Jasper White is not a cause for dismissаl of the appeal. Appellants prayed for citation on Jasper Whitе within one year of the date of the judgment recognizing him as a legatee and sending him and Annie L. White into possession of the property and before the return day in this court and before the transcript was filed here. The record does not affirmatively show that the failure to serve citation on Jasper White was caused by the appеllants or their counsel, and under these circumstances we will not dismiss the appeal. Art. 898, La.Code of Prac.; Cockerham v. Bosley,
For the reasons assigned, it is ordered, аdjudged, and decreed that the motion to 'dismiss be denied, and that the appellants' bе, afforded a period of 30 days from the day this judgment becomes final' to cause citation of appeal to be served on Jasper